United States District Court, D. Kansas
IN RE EpiPen (Epinephrine Injection, USP) Marketing, Sales Practices and Antitrust Litigation (This Document Applies to Consumer Class Cases)
MEMORANDUM AND ORDER
D. Crabtree United States District Judge
matter comes before the court on non-parties Kaiser
Foundation Health Plan, Inc. and Kaiser Foundation
Hospitals' (collectively, "Kaiser") Objections
to Magistrate Order Granting the consumer class
plaintiffs' Motion to Compel Production of Documents.
Doc. 1048. The consumer class plaintiffs have filed a
Response opposing Kaiser's Objections. Doc. 1079. Kaiser
never has filed a Reply, and the time for doing so has
expired. For reasons explained below, the court denies
Factual and Procedural Background
December 11, 2017, the consumer class
plaintiffs served subpoenas on Kaiser under Federal
Rule of Civil Procedure 45. Docs. 165 & 166. Kaiser
timely filed objections to the subpoenas. Later, Kaiser
produced some documents in response to the subpoenas. But the
class plaintiffs contended that Kaiser withheld other
relevant and responsive documents. The class plaintiffs thus
moved the court to compel Kaiser to produce those documents.
Docs. 432 & 433.
September 10, 2018, Magistrate Judge Teresa J. James granted
the class plaintiffs' Motion to Compel. Doc. 980.
Specifically, Judge James concluded that our court has
jurisdiction to decide the Motion to Compel. Id. at
6-7. Also, Judge James found that the class plaintiffs'
document requests sought relevant materials and were not
unduly burdensome. Id. at 7-11. Judge James thus
overruled Kaiser's objections and ordered Kaiser to
comply with the subpoenas. Id. at 11.
now has filed Objections to Judge James's Order. Doc.
1048. Kaiser's Objections assert that Judge James erred
when she granted the class plaintiffs' Motion to Compel
requiring Kaiser to comply with the class plaintiffs'
subpoenas. Thus, Kaiser argues, the court should set aside
Judge James's Order under Federal Rule of Civil Procedure
72(a). Kaiser's Objections also recite that "Kaiser
and the Class Plaintiffs are in discussions about the scope
of [Judge James's] Order and plaintiffs' subpoenas,
and Kaiser is optimistic that it can resolve any scope
concerns without further court involvement," but that
"Kaiser is lodging these objections as a protective
matter, so as to preserve them in the event [the]
negotiations break down." Id. at 4. About two
months has passed since Kaiser filed its Objections, and no
one has reported that the parties have resolved the
"scope concerns." Thus, Kaiser's Objections
remain ripe for the court to decide. Accordingly, the court
addresses and decides Kaiser's Objections, below.
Rule of Civil Procedure 72(a) permits a party to present
specific written objections to a magistrate judge's
order. When reviewing a magistrate judge's order deciding
nondispositive pretrial matters, the district court applies a
"clearly erroneous or contrary to law" standard of
review. See First Union Mortg. Corp. v. Smith, 229
F.3d 992, 995 (10th Cir. 2000) (quoting Ocelot Oil Corp.
v. Sparrow Indus., 847 F.2d 1458, 1461-62 (10th Cir.
1988)); 28 U.S.C. § 636(b)(1)(A); Fed.R.Civ.P. 72(a).
This clearly erroneous standard doesn't permit a de novo
review of the factual findings; instead, the district court
must affirm a magistrate judge's order unless a full
review of the evidence leaves it "with the definite and
firm conviction that a mistake has been committed."
Ocelot Oil Corp., 847 F.2d at 1464. In contrast,
"the contrary to law" standard permits the district
court to conduct an independent review of the magistrate
judge's purely legal determinations. Sprint Commc
'ns Co. v. Vonage Holdings Corp., 500 F.Supp.2d
1290, 1346 (D. Kan. 2007) (citations and internal quotation
marks omitted). A magistrate judge's order is contrary to
law when it "fails to apply or misapplies relevant
statutes, case law or rules of procedure." Walker v.
Bd. of Cty. Comm 'rs., No. 09-1316-MLB, 2011 WL
2790203, at *2 (D. Kan. July 14, 2011) (citing Botta v.
Barnhart, 475 F.Supp.2d 174, 185 (E.D.N.Y. 2007)).
asserts three arguments to support its Objections to Judge
James's Order. The court addresses each argument, in
Kaiser argues that our court lacks jurisdiction to decide the
class plaintiffs' Motion to Compel Kaiser to comply with
the class plaintiffs' subpoenas. Kaiser asserts that
Federal Rule of Civil Procedure 45 requires the class
plaintiffs to move for relief in the Northern District of
California-where Kaiser's headquarters is located and
where Kaiser must comply with the subpoenas. In 2013, Rule 45
was amended to require the filing of "subpoena-related
motions and applications [in] the court where compliance is
required . . . ." Fed.R.Civ.P. 45 advisory
committee's note to 2013 amendment. The amendment's
purpose was "[t]o protect local nonparties" by
providing for "local resolution of disputes about
subpoenas" and to "avoid[ ] burdens on local
nonparties subject to subpoenas." Id.
provides that the place of compliance for producing documents
is within 100 miles of where the "person resides, is
employed, or regularly transacts business in person."
Fed.R.Civ.P. 45(c)(2)(A). Here, the class plaintiffs'
subpoena directs Kaiser to produce documents in Oakland,
California. Doc. 432-7. Thus, Kaiser argues, the place of
compliance is the Northern District of California.
Consequently, Kaiser contends, our court lacks jurisdiction
to decide the class plaintiffs' Motion to Compel because
the District of Kansas is not the place of compliance for the
Kaiser subpoenas. The court disagrees.
Judge James correctly ruled, our court-as the transferee
court in this MDL proceeding-has jurisdiction to decide this
issue, not under Rule 45, but instead under 28 U.S.C. §
1407. Section 1407(a) authorizes the MDL Panel to transfer
"civil actions involving one or more common questions of
fact" to any district for coordinated pretrial
proceedings. 28 U.S.C. § 1407(a). When Congress enacted
§ 1407, its purpose was "intended to provide
centralized management of pretrial proceedings and to ensure
their just and efficient conduct." U.S. ex rel.
Pogue v. Diabetes Treatment Ctrs. of Am., Inc., 238
F.Supp.2d 270, 273 (D.D.C. 2002) (citations and internal
quotation marks omitted). And, specifically, § 1407(b)
permits the MDL court to "exercise the powers of a
district judge in any district for the purpose of conducting
pretrial depositions in such coordinated or consolidated
pretrial proceedings." 28 U.S.C. § 1407(b). Other
courts thus have concluded-both before and after the 2013
amendment to Rule 45-that § 1407(b) empowers an MDL
judge to enforce a subpoena duces tecum acting as a judge of
another district. See, e.g., U.S. ex rel. Pogue v.
Diabetes Treatment Ctrs. of Am., Inc., 444 F.3d 462,
468-69 (6th Cir. 2006); In re Disposable Contact Lens
Antitrust Litig, 306 F.Supp.3d 372, 377-78 (D.D.C.
2017); In re Am. Med. Sys., Inc. Pelvic Repair Sys. Prod.
Liab. Litig, No. 2:14-cv-29705, 2016 WL 756485, at *2
(S.D. W.Va. Feb. 25, 2016); In re Boston Sci.
Corp. Pelvic Repair Sys. Prod. Liab. Litig., MDL No.
2326, 2014 WL 1329944, at *1 n.2 (S.D. W.Va. Mar. 31, 2014).
Kaiser argues that our court-in earlier MDL proceedings-has
refused to apply an exception to Rule 45 's place of
compliance requirement. But, in the case cited, the parties
didn't argue, and thus Magistrate Judge O'Hara never
considered whether the court could exercise jurisdiction
under § 1407. See In re Syngenta AgMir 162 Corn
Litig., MDL No. 2591, 2017 WL 386835, at *1 (D. Kan.
Jan. 27, 2017) (holding that the court could not quash a
subpoena under Rule 45 because the subpoena required
compliance in the Northern District of California, but never
discussing whether § 1407 conferred jurisdiction on the
court to decide the issue in an MDL proceeding). Also, Kaiser
cites another case where the court found that § 1407 may
confer an MDL court with authority to enforce a deposition
subpoena, but not a subpoena duces tecum. In re Packaged